NEW YORK COURT OF APPEALS
People v. Weaver
12 N.Y. 3d 433 (2009)
LIPPMAN, Chief Judge
In the early morning hours of December 21, 2005, a State Police Investigator crept underneath defendant’s street-parked van and placed a global positioning system (GPS) tracking device inside the bumper. The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant. The GPS device, known as a “Q-ball,” once attached to the van, operated in conjunction with numerous satellites, from which it received tracking data, to fix the van’s location. The Q-Ball readings indicated the speed of the van and pinpointed its location within 30 feet. Readings were taken approximately every minute while the vehicle was in motion, but less often when it was stationary. The device’s battery required replacement during the monitoring period, which resulted in yet another nocturnal visit by the investigator to the van’s undercarriage. To download the location information retrieved by the Q-Ball, the investigator would simply drive past the van and press a button on a corresponding receiver unit, causing the tracking history to be transmitted to and saved by a computer in the investigator’s vehicle. It is not clear from the record why defendant was placed under electronic surveillance. What is clear is that he was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. The prosecution sought to have admitted at trial GPS readings showing that, on the evening of the Latham K-Mart burglary at 7:26, defendant’s van traversed the store’s parking lot at a speed of six miles per hour. Without a hearing, County Court denied defendant’s motion to suppress the GPS data, and the electronic surveillance evidence was received. The additional evidence against defendant came primarily from Amber Roche, who was charged in connection with the Latham Meat Market burglary and was deemed an accomplice in the commission of that burglary. Roche testified that prior to the date of the burglary, she drove through the parking lot of the Latham K-Mart with defendant and John Scott Chiera, while the men looked for the best place to break into the store. She stated that on the night of the burglary, defendant and Chiera left her apartment wearing dark clothing. When they returned, Chiera’s hand was bleeding. Other evidence showed that, during the burglary, a jewelry case inside the K-Mart had been smashed and stained with blood containing DNA matching that of Chiera. Notably, Roche’s initial statement to the police did not implicate defendant in the K-Mart burglary, but rather indicated that Chiera had committed the crime with a different individual. A few weeks later, Roche gave the police a second statement implicating defendant instead of that individual.
The jury convicted defendant of two counts relating to the K-Mart burglary, but acquitted him of the counts pertaining to the Meat Market burglary. The ensuing judgment of conviction was affirmed by a divided Appellate Division. The majority rejected defendant’s argument that his Fourth Amendment rights had been violated by the warrantless placement and use of the GPS device, and found that he had no greater right to relief under the State Constitution.
* * * * * *
Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period………..
“An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio … recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles.
We note that we have on many occasions interpreted our own Constitution to provide greater protections when circumstances warrant and have developed an independent body of State law in the area of search and seizure (see e.g. People v Scott, 79 NY2d 474 [1992]; People v Harris, 77 NY2d 434 [1991]; People v Dunn, 77 NY2d 19 [1990]; People v Torres, 74 NY2d 224, 228 [1989]).We have adopted separate standards “when doing so best promotes ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens'” (People v P.J. Video, 68 NY2d 296, 304 [1986]
[citations omitted]). ….
Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause.
Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.
